New Georgia Drone Law and the Aftermath of Taylor v. Huerta

Signed by Governor Deal May 9, 2017, and effective July 1, 2017, a new state law in Georgia attempts to set boundaries on local governments to enact laws and ordinances concerning unmanned aircraft systems (“UAS”) or drones. The 2017 law is the verbatim repackaging of two sections of 2016 UAS legislation that was passed last year but not signed by the Governor.

The short law will be codified in Georgia Code 6-1-4 as part of general aviation statutes and has three sections.

Section (a) defines “unmanned aircraft system” to be a “powered, aerial vehicle” (other than a satellite) that meets certain criteria:

Does not carry a human operator and is operated without the possibility of direct human intervention from within or on the aircraft;

Uses aerodynamic forces to provide vehicle lift;

Can fly autonomously or be piloted remotely; and

Can be expendable or recoverable.

Subsection (b) provides that after April 1, 2017, only the State may enact laws related to the “testing or operation” of unmanned aircraft systems, subject to several exceptions. First, ordinances adopted before April 1, 2017, are not rendered null and void by the statute. Second, cities and counties can continue to pass ordinances that “enforce Federal Aviation Administration (“FAA”) restrictions.” Third, cities and counties can prohibit the launch or intentional landing of UAS from or on that entity’s public property unless the UAS is being operated for “commercial purposes.”

Subsection (c) of the new law allows the State or any agent or department of the State to prohibit the launch or intentional landing of any UAS from or on its property.

Trying to understand how the new law will be applied does generate some head-scratching. For example, standard rules of statutory interpretation require courts to assume that no part of the statute is superfluous, but it is difficult at first blush to understand what sections (a)(B), (a)(C), and (a)(D) add to the definition provided in (a)(A)-which is modeled on the FAA’s definition of unmanned aircraft. According to NASA, “Anything that moves through air reacts to aerodynamics” whether rockets or kites, so if something flies, whether a drone or a volleyball, aerodynamic forces have provided enough lift to overcome weight and drag, whether for a short or long time. If an aircraft is operated without human involvement on or within the aircraft as under (a)(A), then it must necessarily be remotely piloted, even if that pilot has pre-programmed a flight plan or if the drone launches in response to pre-programmed stimuli. Perhaps the law is attempting to cover both radio controlled operations when the pilot actually works the “sticks and rudder” and small UAS operated by gaming-type controls with built in adjustments related to stability, etc. Why the criteria in (a)(D) are needed is unclear. An expendable aircraft would be one that the owner considers of little significance to an overall mission or purpose and that the owner will willingly abandon. Recoverable simply means capable of being recovered. Expendable and recoverable are not mutually exclusive and would appear to be mission specific. A drone may well be both expendable and recoverable, or neither, depending on who is flying it and why. Many more questions remain to be sorted out.

Similarly, subsection (b) seems designed to pre-empt local regulation of “testing and operation” of drones by allowing only the State to enact laws on those topics. The statute, however, apparently permits local governments to enact laws “enforcing FAA restrictions,” whatever that may mean.

It is too soon to determine if parts of the newly minted Georgia law or any category of contemplated local laws may be preempted by federal laws or regulations. The FAA has specifically encouraged states to consult with it about proposed legislation to avoid trespassing on the FAA’s exclusive rights to regulate operational aspects of flight such as “flight altitude, flight paths; operational bans; any regulation of the navigable airspace.” FAA Office of General Counsel’s “State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet” issued on December 17, 2015. Whether the Georgia law is intended to actually regulate the “operation” of UAS in the navigable airspace, i.e. flying, is not clear.

The one group, however, that the State may be able to regulate without fear of preemption is hobbyists. The Federal Circuit Court of Appeals for the District of Columbia Circuit has ruled that the FAA cannot require owners of small unmanned aircraft operated for recreational purposes, also referred to as modelers, to register with the FAA, and in fact can make no law concerning recreational users. Taylor v. Huerta, Case No. 15-495 (D.C. Cir. May 19, 2017). The State may be able to step into this gap, establish a database, and require registration and licensing of recreational users. Whether the next FAA funding and authorization bill, due out in late summer/early fall 2017 will authorize the FAA to regulate recreational users remains to be seen. In the meantime, operators will need to be vigilant in staying up to date on the local laws in the cities and counties where they fly.